Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection
U.S. Supreme Court holds that a Florida Supreme Court ruling against shoreline property owners did not create a so-called “judicial taking” of private property
Status: Final
Discussion & Analysis:Private property rights advocates have long argued that there should be a “judicial takings” doctrine. Their theory is that the judicial branch of government, through adjudication, is as capable of taking private property in violation of the Fifth Amendment as the executive and legislative branches. This arguably could happen, for instance, when a judge resolves a property law dispute in a way that eliminates or modifies the rights of a property owner, causing a loss in value. But many legal scholars believe that the “judicial takings” theory is unnecessary as a matter of constitutional law, would hinder the ability of courts to effectively resolve property disputes, and raises federalism concerns by setting up federal courts as overseers of state courts interpreting state property laws.
The doctrine remained theoretical until a group of Florida beachfront property owners presented the issue to the U.S Supreme Court in 2009. The owners, organized into a group called “Stop the Beach Renourishment,” were opposed to a project by the Florida Department of Environmental Protection to replenish beach sand along their property to slow erosion caused by strong storms and sea level rise. As a matter of state constitutional law, Florida owns in public trust the submerged lands along the coastline up to the “mean high water line” (MHWL). Thus the public has access to beach areas below the MHWL. When the state carries out a renourishment project, it establishes a new, fixed line between public and private land called the Erosion Control Line (ECL), generally set at the MHWL. The land below this is declared state property, and sand is pumped in to extend the shoreline outward toward the sea.
The property owners argued to the Florida Supreme Court that the ECL established a permanent property line that negatively affected their rights as littoral (seaside) property owners. They claimed that Florida property law afforded them the right to have their property line contact the water, as well as the right to gain “accretions” of land caused by small natural fluctuations in the shoreline. The ECL allegedly took away these rights by fixing a permanent property line that created a strip of state-owned dry land between their properties and the water, to which the public now had access. The Florida Supreme Court rejected this theory as a misinterpretation of the state’s property laws, which did not clearly give littoral property owners an immutable right to contact with water or the right to own all accretions of land between the water and their property.
At this point, the case took an unusual turn. Typically, state high courts have the final say on their interpretations of state property law. These property owners, however, now sought review in the U.S. Supreme Court on the theory that this particular ruling had so dramatically altered their property rights that the Florida court, itself, had effected a “taking” of their private property under the Fifth Amendment of the U.S. Constitution. To the surprise of most observers, the high court agreed to take the case.
In June 2010, the Supreme Court ruled 8-0 that the Florida Supreme Court had not caused a taking of the owners’ property. (Justice Stevens recused himself from the case, likely because he owns beachside property in Florida.) However, the justices split 4-4 on the rationale. Four conservative justices, in two sections of the opinion authored by Justice Scalia, accepted the view that it is possible for judges to cause a taking of property. The precise standard proposed by Scalia for a “judicial taking” would be whether a court’s decision “contravenes the established private property rights” of a property owner. Applying this standard to the Florida beach owners, Scalia determined that the Florida courts had faithfully applied established state property law, and thus no judicial taking had occurred.
In contrast, four justices, in two separate concurrences, stated that while they agreed with the judgment against the property owners here, they disagreed with Justice Scalia’s attempt to use the case to establish a judicial takings doctrine. Justice Kennedy, joined by Justice Sotomayor, emphasized the availability of other constitutional remedies, such as the Due Process Clause, to resolve claims that a court has contravened a person’s rights. Justice Breyer, joined by Justice Ginsburg, stated that the case could be resolved without creating a new doctrine or test, because this particular claim would fail under any test. All four justices were concerned that by establishing a new rule for judicial takings in this case, courts adjudicating property disputes throughout the country would face a slew of new claims and arguments each time a property decision changed the value of someone’s property.
The 8-0 judgment in this case clearly signals that property owners will have an uphill battle proving that state court decisions cause a taking of property. However, with the four conservative justices indicating that they would recognize such claims, the door remains open to future litigants to claim a “judicial taking.” The unanimous vote is a powerful win for environmental interests concerned that government retains the authority and flexibility necessary to ensure a healthy and safe environment.
Nonetheless, Justice Scalia’s opinion is a reminder that a vocal bloc of justices still holds a static view of property rights. By emphasizing the question whether a right is “established” or not, Scalia’s proposed standard for judicial takings invites a federal lawsuit each time a state judge is required to apply laws in a new way to new sets of facts. For example, climate change will have a dramatic impact on coastal properties in the coming decades, and states will need robust authority to take measures in coastal areas to protect both human development and ecosystems. These measures will likely require new approaches to environmental stewardship. The efforts of state governments (including state courts) to adapt would be hampered if federal judges were authorized to second-guess state courts’ interpretations of state laws.
Key Opinion: Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, --- S. Ct. ----, 2010 WL 2400086 (June 21, 2010).
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